Middleton v. Ball-Foster Glass Container Co.

• Decision Date: 02 February 2001
• Docket Number: No. Civ.A. 3:99-CV-0964-P.,Civ.A. 3:99-CV-0964-P.
• Citation: 139 F.Supp.2d 782
• Parties: Steve MIDDLETON, Plaintiff, v. BALL-FOSTER GLASS CONTAINER CO., L.L.C., Defendant.
• Court: U.S. District Court — Northern District of Texas

139 F.Supp.2d 782

Steve MIDDLETON, Plaintiff, v. BALL-FOSTER GLASS CONTAINER CO., L.L.C., Defendant.

No. Civ.A. 3:99-CV-0964-P.

United States District Court, N.D. Texas, Dallas Division.

February 2, 2001.

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John E. Wall, Jr., Laura Ellen Calhoun, Law Office of John E. Wall, Jr., Dallas, TX, for plaintiff.

Robin S. Ghio, Jenkens & Gilchrist, Dallas, TX, Richard Matthew Kobdish, Jr., Fulbright & Jaworski, Dallas, TX, for Ball-Foster Glass Container Co., LLC, defendant.

Courtenay Lee Bass, Dallas, TX, pro se.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.

Now before the Court are Defendant's Rule 56 Motion for Summary Judgment and Rule 12(b)(1) Motion to Dismiss, Plaintiff's Response to Defendant's Motion to Dismiss and for Summary Judgment, and Defendant's Reply to Plaintiff's Response to Defendant's Rule 56 Motion for Summary Judgment and Rule 12(b)(1) Motion to Dismiss. The Court has considered Defendant's present motion and, for the reasons discussed herein, hereby DENIES Defendant's Motion to Dismiss and GRANTS Defendant's Motion for Summary Judgment.

BACKGROUND

Plaintiffs' Complaint alleges that Defendant violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), by failing to reasonably accommodate him, unlawfully "refus[ing] to permit Plaintiff to return to work on or after March 27, 1998 although released by his doctor, and retaliation". Plaintiff also alleges a violation of Texas Labor Code § 451.001 for discrimination against Plaintiff because he filed a worker's compensation claim in good faith.

Plaintiff is represented by the Glass, Molders, Pottery Plastics & Allied Workers Union, AFL-CIO, CLC ("the Union"). On October 16, 1998, the Union filed a grievance on Middleton's behalf, alleging contractual violations.¹ Pursuant to the grievance under the National Labor Relations Act, 29 U.S.C. §§ 151, et seq. ("NLRA"), an arbitration was held before a mutually selected neutral. On July 11, 2000 the arbitrator issued his Award denying the grievance.²

FACTS

Ball-Foster's Waxahachie plant manufactures glass bottles. Prior to his injury, Plaintiff was employed as a floor person/apprentice operator in the part of the plant where molten glass is formed by machines into bottles, known as the "hot end;" the "cold end" is the part of the plant where the bottles are inspected, put into boxes, stored in a warehouse, etc.³ Prior to becoming a floor person/apprentice operator, Plaintiff worked at various jobs in the cold end.⁴

On May 30, 1996, Plaintiff suffered a back injury on the job, and later took an extended medical leave of absence for surgery and recovery/rehabilitation.⁵ In August of 1996, Middleton was seen by two company doctors: Dr. Bousquet, and Dr. Garrison of Baylorworx (a medical clinic where Defendant sends employees to treat on the job injuries), for an evaluation of his back injury.⁶ Dr. Garrison evidently declined to give Plaintiff an MRI, thinking it an unnecessary expense, and released Plaintiff to work with no restrictions on September 3, 1996.⁷ Plaintiff provided his release to Defendant and resumed working. On September 7, Plaintiff went to the emergency room to treat his back pain; he was then referred to Dr. Bousquet for an MRI.⁸ Dr. Bousquet removed Plaintiff from work, an MRI was performed, and Middleton underwent back surgery to treat a herniated disk.⁹ In September 1996, Plaintiff filed an Employee's Notice of Injury and Claim for Compensation with the Texas Worker's Compensation Commission (TWCC) and began receiving benefits.¹⁰ In October 1997, Middleton had a Functional Capacity Evaluation (FCE) performed at Baylorworx at Dr. Bousquet's recommendation.¹¹

Plaintiff was released to work with no restrictions by Dr. Bousquet, and returned to work on January 5, 1998 in his floor person/apprentice operator position, an absence of 15 months.¹² The next day, Plaintiff's supervisor evidently singled out Middleton for a verbal warning for his performance, and placed him on a machine he was unfamiliar with; a writeup for poor performance followed.¹³

Plaintiff experienced pain and back swelling, and on March 2, 1998, Plaintiff changed his "treating doctor" upon approval from the TWCC to Charles Osborn, a local chiropractor.¹⁴ Dr. Osborn's initial medical opinion was that Plaintiff had permanent work restrictions, meaning they lasted "forever."¹⁵ Plaintiff Middleton understood that Doctor Osborn's restrictions were permanent, but that he might be able to do a cold end job.¹⁶ Julia Kirchner, Defendant's Human Resources Manager, evidently also understood the restrictions to be permanent.¹⁷ Dr. Osborn wrote an Employee's Work Limitation Slip for Middleton to give to Defendant, and recommended a "badge change," or permanent job reassignment.¹⁸ Around March 27, 1998, Plaintiff was released to work permanent light duty.¹⁹ Plaintiff was diagnosed with post-laminectomy syndrome and was restricted by his doctor from lifting over 25 pounds, excessive bending, and heavy pushing and pulling.²⁰ Plaintiff then attempted to return to work and presented his release to Human Resources Manager Julie Kirchner, who told Plaintiff to go home and that she would call him when they had a job for him.²¹

On April 15, 1998, Middleton filled out a "Statement of Claim For Continuance of Life Insurance Protection During Total Disability" through which Dr. Osborn indicated Plaintiff was totally disabled for his regular occupation, so that he could never return to work in his regular occupation.²² However, a second employee work limitation slip of May 8, 1998 signed by Dr. Osborn indicated that Plaintiff's limitations were temporary for 8 weeks, with no badge change recommendation.²³ Kirchner found this change out of the ordinary.²⁴ At some point which is disputed, Plaintiff told Dr. Osborn that his application for permanent disability benefits had been denied (for lack of seniority, as Plaintiff recalls Kirchner's account).²⁵ Upon seeing the change from permanent to temporary restriction, Kirchner remarked, "Oh, what an interesting coincidence," referring to her earlier explanation to Plaintiff that only those employees temporarily restricted receive light duty.²⁶ Two more limitation slips followed with similar temporary restrictions and limitations on Plaintiff's physical activities.²⁷

On August 10, 1998, Kirchner wrote to Dr. Osborn expressing her understanding that Plaintiff could not return to his old job, and requesting Osborn to consider Plaintiff's fitness for several "cold-end" jobs.²⁸ Dr. Osborn's reply simply listed several cold-end jobs which he thought Plaintiff could do.²⁹ Kirchner wrote back to ask for more information, noted Defendant's desire for a second opinion from its own doctor, and requested Osborn to prescribe an FCE from Baylorworx.³⁰

Around September 14, 1998, Middleton told Kirchner that he did not want Baylorworx to perform the FCE, but would prefer Sargent Injury Rehabilitation, and Kirchner agreed.³¹ Plaintiff opposed using Baylorworx because of Dr. Garrison's less than thorough and accurate examination and diagnosis of Plaintiff's original injury; Plaintiff further understood that where an FCE is performed is inconsequential, but that Sargent's equipment was computerized, not manual like Baylorworx's.³² Dr. Osborn was an employee of Sargent, though Kirchner was not aware of it when she approved of Sargent.³³ When Kirchner received the Sargent FCE signed by Osborn and citing his opinions, she realized the FCE was not independent from the first opinion she sought to verify.³⁴ The FCE specifically approved Middleton's return to the cold end jobs previously listed by Dr. Osborn.³⁵ However, the FCE stated Middleton was restricted on a repetitive basis from most of the physical activities listed, including bending and reaching.³⁶ The meaning or application of these restrictions is not elaborated.³⁷ Kirchner wrote to Osborn to reconcile the apparent discrepancies, and Dr. Osborn took a tour of the plant before writing Kirchner that Plaintiff could return to the floor person/apprentice operator position, a hot end job, "provided he does not have to change out the cores or the molds himself," and also naming several suitable cold end jobs.³⁸ There is evidence that Kirchner had stated that if Osborn would tour the plant and note the jobs Middleton could perform, Middleton would be returned to work.³⁹

Kirchner brought in Cathleen Moore of Baylorworx who conducted a job site assessment at the plant in February of 1999 and concluded that changing of the molds was an essential floor person/apprentice operator job function; Plaintiff has agreed.⁴⁰ In March 1999, Kirchner wrote Middleton to request a release of medical information so a third party could compare the job analysis to Plaintiff's medical capabilities.⁴¹ Plaintiff's attorney responded a month later by criticizing Defendant's delay in returning Plaintiff to work and the rejection of Dr. Osborn's recommendations, and threatened suit.⁴² Defendant's response just twelve days later cited apparent inconsistencies in Dr. Osborn's statements and expressed the desire for a second opinion.⁴³

In July 1999, Defendant wrote Middleton to inform him of a recall from layoff and invite him to take a cold end job if he would submit to an FCE by Company doctors who would determine if Middleton could work safely.⁴⁴ Plaintiff's response only criticized Defendant's conduct in contacting Mr. Middleton rather than his counsel; Defendant responded to the concern.⁴⁵

On September 21, 1999, Middleton was informed by Todd Glawe, Defendant's new human resources manager, that he was being suspended for refusing to report to Baylorworx for evaluation.⁴⁶ Plaintiff responded by offering to submit to evaluation by a provider other than Baylorworx and noting Defendant's rights to a medical exam under the Federal Rules.⁴⁷ Defendant later sought simply to confirm Plaintiff's first FCE as well as to obtain the...